SHREE ROSHAN COLD STORAGE,SAMBHAL vs. PR. CIT , BAREILLY
Facts
An assessment order under Section 143(3) was passed for AY 2017-18, determining the assessee's income. The PCIT subsequently invoked Section 263, finding the assessment order erroneous and prejudicial to the revenue, and set it aside, directing a fresh assessment. The assessee's appeal to the Tribunal involved a 350-day delay, which was condoned due to the death of a partner.
Held
The Tribunal found that the PCIT passed an ex-parte order under Section 263 without affording the assessee an adequate opportunity of being heard, despite notices being issued. To ensure substantial justice and a decision on merits, the Tribunal remanded the matter back to the PCIT for de-novo adjudication, instructing the assessee to cooperate.
Key Issues
Whether the PCIT's ex-parte order under Section 263, passed without providing the assessee an opportunity of being heard, was sustainable, and whether the matter should be remanded for fresh adjudication.
Sections Cited
Section 143(3), Section 263, Explanation 2(a) to Section 263
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, DELHI BENCH’ G’: NEW DELHI
1 ITA No. 1157/Del/2023 Shree Roshan Cold Storage IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH’ G’: NEW DELHI
BEFORE, SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER AND SHRI YOGESH KUMAR U.S., JUDICIAL MEMBER
ITA No.1157/Del/2023 (ASSESSMENT YEAR-2017-18)
Shree Roshan Cold Pr. CIT Storage Central Revenue VPO Rustampur, Village Vs. Building, Kamla Nehru Niyawali, Sambhal, Marg, Civil Lines, Uttar Pradesh-244302 Bariely, Uttar Pradesh PAN-AAGFS7012N (Appellant) (Respondent)
Appellant by Sh. V. Rajkumar, Adv Respondent by Sh. Dharm Veeer Singh, CIT- DR
Date of Hearing 29/04/2024 Date of Pronouncement 30/04/2024
ORDER PER YOGESH KUMAR U.S., JM:
This appeal filed by the assessee against the order of Learned
Principal Commissioner of Income Tax (Appeals)- Braeilly [“Ld.
PCIT”, for short], dated 04/03/2022 for Assessment Year 2017-18.
2 ITA No. 1157/Del/2023 Shree Roshan Cold Storage 2. There is a delay of 350 days in filing the present Appeal and
an application for condonation of delay has been filed by the
Assessee stating that one of the partners of the Assessee firm was
suffering from illness of cancer and expired on 28/09/2022 and the
impugned order of the PCIT was kept by the deceased which was
not known to the other partner, therefore, could file the Appeal
before the Tribunal within the period of limitation provided under
the Act, therefore, sought for condonation of the delay. For the
reasons stated in the application filed by the Assessee for
condonation of delay, the delay of 350 days in filing the present
Appeal is condoned.
Brief facts of the case are that, an order u/s 143(3) came to be
passed on 30/12/2019 by computing the income of the Assessee at
Rs. 11,83,611/- as against returned income of Rs. 9,58,149/-. The
Ld. PCIT has exercised the power conferred u/s 263 of the Income
Tax Act, 1961 (‘Act’ for short) and of the opinion that the
assessment order dated 30/12/2019 passed u/s 143(3) of the Act
is erroneous, in so far as prejudicial to the interest of the Revenue
as per Explanation 2(a) to Section 263 of the Act, accordingly vide
3 ITA No. 1157/Del/2023 Shree Roshan Cold Storage order dated 04/03/2022 set aside the assessment order and
directed the A.O. to frame fresh assessment by keeping in view of
the observation made by the Ld. PCIT, which is under challenge by
the Assessee in the present Appeal.
The Ld. Counsel for the Assessee submitted that the Ld. PCIT
passed ex-parte order impugned wherein the Assessee has not been
provided opportunity of being heard, therefore, sought for
remanding the matter to the file of PCIT for fresh consideration.
Per contra, the Departmental Representative submitted that
the Assessee has been provided with sufficient opportunities which
have not been utilized by the Assessee and further by relying on the
findings and the conclusion of the order impugned, the
Departmental Representative sought for dismissal of the Appeal
filed by the Assessee.
We have heard the parties perused the material available on
record. During the proceedings u/s 263 of the Act the Ld. PCIT has
issued notice on 02/02/2022 and 12/02/2022 fixing the case on
11/02/2022 and 22/02/2022 respectively. However, no
compliance has been made by the Assessee to both the notices and
4 ITA No. 1157/Del/2023 Shree Roshan Cold Storage no reply/submission made by the Assessee, therefore, the Ld. PCIT
passed an ex-parte order by setting aside the assessment order and
directed the A.O. to frame the de-novo assessment. On going
through the order of the PCIT, it is found that the Ld. PCIT has not
decided the issued on merit and passed the order impugned
without hearing the Assessee. In our considered opinion, if an
opportunity of being heard given to the Assessee and decide the
issue on merit by the Ld. PCIT, substantial justice would be
rendered. Accordingly, we remand the issue to the file of the PCIT
for de-novo adjudication with a direction to the Assessee to fully co-
operate with the proceedings before the Ld. PCIT.
In the result, Appeal of the Assessee is partly allowed for
statistical purpose.
Order pronounced in open Court on 30th April, 2024
Sd/- Sd/- (S. RIFAUR RAHMAN) (YOGESH KUMAR U.S.) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 30/04/2024 R.N, Sr.ps
5 ITA No. 1157/Del/2023 Shree Roshan Cold Storage Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT
ASSISTANT REGISTRAR ITAT, NEW DELHI
